Male Rape in Law and the Courtroom

Abstract

This paper critically examines male rape in law
and the courtroom. In particular, the legal definition of male
rape is explored. This is because the phenomenon of male rape in
law and the courtroom has gained very little attention to date in
the legal literature in England and Wales. This paper intends to
fill this gap in the literature by critically examining the
adequacy of the law regarding male rape, and also how male rape
victims are treated in the courts as a result of the law being
applied. This paper highlights several themes in defence
questioning of male rape victims and argues that the problematic
definition of male rape in the rape law in England and Wales does
not fully reflect male rape victims' experiences of what they
classify as rape. The paper argues that the legal definition of
male rape should fully reflect male rape victims' experiences,
and the defence counsels' expectations of how a male rape victim
is supposed to have suffered contradicts the male rape
literature.

1. Introduction

Now that male rape is recognised in law, it does raise a
number of concerns and issues regarding the conduct of male rape
trials that have gained very little attention in the legal
literature. The urgency to understand the issues of male rape in
law and the courts is emphasised by the significant rise in male
rape cases coming forward to the police. For example, recent
figures show there were 2,164 rape and sexual assaults against
males aged 13 or over recorded by the police in the year ending
September 2013 (Ministry of Justice, 2014). As a result, the
Government has committed £500,000 over the next financial
year to provide services, such as counselling and advice, to help
male rape victims, who previously have not been able to receive
such support, and encourage them to come forward after suffering
such a crime (Ministry of Justice, 2014). This fund will also
support historic victims who were under 13 at the time of the
attack. The fund is open to bids from all charities and support
organisations that feel they can offer help specifically for male
rape victims. This will build on the services already available
for rape or sexual abuse victims and ensure victims of most
serious crimes receive the highest level of support.

The need to understand the issue of male rape is further
emphasised by the growing amount of research regarding male rape.
For instance, rape in prison (King, 1993); rape in the general
population (Lees, 1997); rape in the army (Mulkey, 2004; Belkin,
2008; Turchik and Edwards, 2012); feminist responses to male rape
(author, 2014c); and also the dynamics, impact, and nature of
male rape (Walker et al., 2005; Abdullah-Khan, 2008;
author, 2014a, b, c). More recently, there has been research on
how the media portray male rape (Cohen, 2014). These research
studies have challenged many male rape myths and have highlighted
the extent to which misunderstandings pertaining to male rape
influence the attitudes of the wider community.

Male rape myths are stereotyped, prejudicial, and false
beliefs about rape, offenders and victims of rape. Abdullah-Khan
(2008) argues that the police and courts operate on the
assumption of particular 'rape myths' regarding male rape
victims, such as male rape is non-existent or heterosexual men
are unable to be raped. As researchers have argued (e.g. Lees,
1997), all men regardless of sexual orientation have the
potential to be raped. The persistence of male rape myths means
that victims are often left untreated, isolated, and sidelined
(Cohen, 2014). It is important to be aware of which specific rape
myths the courts are more likely to subscribe to because they can
influence how male rape victims are treated in the courts
(Gregory and Lees, 1999). Research has shown that, in the context
of rape of women, addressing these myths has been very important
in changing criminal justice practices, as rape victims are more
likely to trust and confide in local authorities; therefore,
increasing the reporting rate of rape (Walklate, 2004). However,
several research confirms that male rape victims are less likely
than female rape victims to report to the police and to pursue
their case to court because of male rape myths that facilitate
inaccurate assumptions about male rape (Jamel, 2010), low
reporting rates (Cohen, 2014), poor treatment (Sleath and Bull,
2010), and an increase in homophobia (Abdullah-Khan, 2008).

However, what is missing from the legal literature is research
pertaining to male rape in law and the courtroom in England and
Wales. To address this gap in the literature, this paper will
draw on the growing amount of research on male rape. By doing so,
this paper is divided into three parts: first, it is important to
define male rape in this paper in order to understand the issue
in law and the courts, and to critically examine the legal
definition of male rape; second, male rape in law is explored,
examining the wide range of issues and concerns articulated by
critics of the rape law; third, male rape in the courts is
critically analysed. Before this, it is important to define male
rape in this paper, in order to understand and critically examine
male rape in law and the courts.

2. What is Male Rape?

This paper focuses on male on male rape. According to the
current rape law in England and Wales, only a man can perpetrate
rape (as the penetration has to be with a penis). However, both
men and women can be raped. Section 1 of the Sexual Offences Act
(2003: chapter 42, part 1) currently defines male rape as the
following:

A person (A) commits an offence if-

he intentionally penetrates the vagina, anus or mouth of
another person (B) with his penis,

B does not consent to that penetration, and

A does not reasonably believe that B consents.

Whether a belief is reasonable is to be determined having
regard to all the circumstances, including any steps A has taken
to ascertain whether B consents.

3. Law and Male Rape

The Criminal Justice and Public Order Act (1994) was the very
first act to criminalise male rape, giving male rape victims
recognition in law for the first time (Mezey and King, 2000).
Until the Criminal Justice and Public Order Act (1994), in law
male rape was not defined as a criminal offence, so a man could
only commit rape against a woman. This Act is partially
gender-neutral in that it substituted the words "it is an offence
for a man to rape a woman" [2] with "it is an offence for a man to commit
rape". [3] The 1994
Act simply defined rape as penile penetration of the anus or
vagina. Consequently, the first case of male rape emerged before
the courts. [4]
Before the enactment of section 142 of the Criminal Justice and
Public Order Act (1994), forced penile-anal intercourse was
classed as buggery, not rape. Buggery carried a lesser penalty
than vaginal rape; buggery carried a maximum penalty of 10 years
(where the male victim was over the age of 16), in comparison to
the crime of rape for which the maximum punishment was life
imprisonment. The Sexual Offences Act (1956), s.12 states that,
"It is an offence for a person to commit buggery with another
person or an animal", which remained the basis of legislation for
prosecuting acts of anal sex between men until the Sexual
Offences Act (1967) that decriminalised private homosexual acts
between men aged over 21. It could be argued, thus, that prior to
the 1967 Act, if male rape victims wanted to disclose their rape,
there was the risk of consent being presumed if they were not
able to provide evidence that they were raped. This might have
facilitated a judgment of the victim consensually participating
in homosexual activity, which could be a crime under the law of
the pertinent state. The risk of this occurring could have
deterred some male rape victims from reporting.

The Criminal Justice and Public Order Act (1994) emerged
because of ideas surrounding gender equality, for prior to the
1994 Act, the coercive buggery of male victims was subject to a
shorter sentence than the coercive buggery or the vaginal rape of
female victims (Graham, 2006). Therefore, it has been argued that
in law, raping a man was less serious than raping a woman
(Graham, 2006). The different penalties for forced buggery and
rape prior to the 1994 Act came under the Sexual Offences Act
(1956) conditional on the sex and age of the victim. For male
victims, a sliding sentencing scale was utilised conditional on
the ages of the victim and defendant: cases in which the offender
was over 21 and the male victim was under 16, the maximum penalty
was life, as it was when against a female of any age; cases in
which the male victim and offender were respectively older than
16 and 21, however, the maximum penalty was 10 years [5] (Rumney and
Morgan-Taylor, 1998). This supports graham's argument that the
rape of a man was less serious than that of a woman, in law. It
was also evidenced in cases that forced buggery was less serious
than the rape of a woman. For instance, the Court of Appeal in
Wall (1989) 11 Cr App R (S) 111 argued the
following:

… rape was the most serious sexual offence, and if
other sexual offences were equated with rape, there would be a
risk that rape would be diminished as the most serious of sexual
offences … by enacting the Sexual Offences Act 1967, s 3,
Parliament had made clear its view that non-consensual buggery
was a less serious crime than rape. [6]

Before the 1994 Act, there were no clear guidelines
exclusively for forced adult male attacks. The comprehensive
guidelines in Willis (1974) 60 Cr App R 146 merely
covered cases regarding boys below the age of 16. Therefore, the
guidelines set out in Billam (1986) 8 Cr App R (S) 48
for vaginal rape were applied to cases regarding buggery in a
string of cases, such as Stanford (1990) Crim LR 526 and
Mendez (1992) 13 Cr App R (S) 94, with a suitable
sentence reduction to consider the apparent severity of the crime
in comparison to vaginal rape. Certain critics stated that they
found the punishment of 5 years in the case of Stanford
(1990) Crim LR 526 to be longer than one would expect. By
examining the punishment under laws prior to the 1994 Act
including examples of female and male victims of buggery, one can
infer that within some cases there were penalties
without considering the sex of the victim (e.g., Wall
(1989) 11 Cr App R (S) 111; Stanford (1990) Crim LR 526;
Mendez (1992) 13 Cr App R (S) 94). In some cases, it
seems that sentences for forced buggery were not different
depending on the victim's gender. On balance, it could be argued
that there was a lack of coherence and consistency in sentencing
within law prior to the 1994 Act.

At the same time, the courts showed discomfort surrounding the
myopic term rape and the ensuing sentencing disparity in some
cases concerning the buggery of female victims prior to the 1994
Act. For example, in the case of Ball (1982) 4 Cr App R
(S) 351, 352, initially the judge thought that, if the victim did
not have consensual buggery, then it is an issue of 'anal rape'.
Similarly, Glidewell LJ in the case of Jenkins (1991)
Crim LR 460 (abridged report) specified that, "Non-consensual
buggery is in many ways a particularly unpleasant form of rape,
and is treated as such …". Glidewell LJ expanded on this
point in the case of Mendez (1992) 13 Cr App R (S) 94:
"In our view, forcible buggery of a woman is equatable
to rape, but worse than normal vaginal rape" (italics
mine). This leads Rumney and Morgan-Taylor (1998) to argue that
it is unknown whether the courts implied that there ought to be
an extra element aggravating forced buggery perpetrated against a
woman, or whether the courts questioned the unique status of
rape. It is important to note that one judge, at least, mentioned
the act of buggery as a form of rape against a male in the case
of Payne (1994) 15 Cr App R (S) 395, 396: "Here was this
unfortunate creature … for whom the only human emotion
should have been the deepest pity and desire to help, instead of
which, he is raped by you" (emphasis added).

The quotes above conflict with the inferences made by the
Criminal Law Revision Committee report because it states that
rape is a "unique and grave" crime (CLRC, 1984: paragraph 2.3),
and other penetrative acts are "distinct from rape" (ibid.:
2.47).

The CLRC (1984) supports the view that rape is a highly
gendered crime whereby rapists are men and women are victims, so
the report outlined that forced buggery should be excluded as a
crime. This view suggests that the criminal sentencing of
coercive rape of a man was regarded as less important than
coercive rape of a woman. It is not clear, then, whether the
approach in the cases of Mendez (1992) 13 Cr App R (S)
94 and Jenkins (1991) Crim LR 460 (abridged report)
would have been applicable to male victims of forced buggery.
Similarly, in parliamentary debates about the 1994 Act to
criminalise male rape, there were continual discussions on the
anal rape of females, and there were many suggestions that
coercive anal rape might be less upsetting for a man than for a
woman (Hansard, House of Lords, 1994, 20 June. London.).
However, the report did highlight the need to consider male rape
in law, so it is plausible that at the time of the report, it was
able to at least give recognition to the hidden nature and
existence of male rape, where much legal literature and research
failed to do so:

It is clear that the distinction between buggery that is
really consensual anal sex and buggery that is really rape must
be clarified in law. That legal distinction is long overdue, both
for women and for men. Consensual sex of whatever nature is not
the business of the law, but it is the law's job to protect
women, men and children from anal rape (Hansard, House
of Lords, 1994: 20 June, column 179).

For the first time ever, the parliamentary debates associated
with the amendment paid significant attention to the concept of
male rape (Rumney, 2008). "The amendment was seen as a means of
securing equality of treatment with female victims, as well as
ensuring appropriate labelling and sentencing for
maleand female victims of anal rape" (ibid.: 82)
(italics in original). These points were continually raised in
the debates found in the Hansard House of Lords (1994),
20 June, London report. Graham (2006) and Saunders (2006) argue
that this amendment is 'privileging' male rape victims over
female rape victims. However, Abdullah-Khan (2008) believes that
the criminal justice system provides poor treatment for male rape
victims, suggesting no preferential treatment is provided. In
balancing the argument, within the initial parliamentary debates,
in which there was a brief debate about the amendment, there was
more discussion about the non-consensual penile-anal intercourse
of men instead of women (Hansard House of Lords (1994),
20 June, London). Therefore, it is clear from the
Hansard House of Lords (1994), 20 June, London report
that MPs were aware of the existence of male rape, considering at
the time, male rape had a lack of recognition, so they felt it
was important to highlight male rape in order to give it societal
recognition. For example:

Men and boys, like women and girls, are raped by strangers, by
members of their families, by their partners in gay
relationships, by casual acquaintances or dates, and, especially
when they are young, by men in positions of power and authority
over them. Male rape is especially common in prison. It is time
that the law addressed that problem, which could easily be done
by changing the word in the Sexual Offences (Amendment) Act from
"she" to "person" ( Hansard, House of Lords, 1994: 20
June, column 179).

Thus, male rape victims are not being privileged in any sort
of way over female rape victims (Abdullah-Khan, 2008). In fact,
this preferential argument may be harmful since it could be
argued that we must not compare and contrast who is being given
preferential treatment, as this is not providing any context in
which to support all victims of rape, regardless of gender. Other
writers, however, believe that females should get preferential
treatment in law and so the law ought to be, above all, concerned
of the safeguard regarding female autonomy:

Given man's greater physical strength and woman's consequent
vulnerability, the overriding objective which, it is submitted,
the law of rape should seek to pursue is the protection of sexual
choice - that is to say, the protection of a woman's
right to choose, whether, when and with whom to have sexual
intercourse (Temkin, 1982: 400-01. Italics added).

This myopic argument expects men to be strong, dominant,
powerful, and invulnerable, ignoring the possibility that many
men may not subscribe to or fulfill these expectations. Whilst
her argument is supporting women's rights, her formulation
ignores men's rights in respect of getting equivalent rights to
women in law. Her argument also ignores the many different ways
wherein an individual can be controlled to having sexual
intercourse that is unwanted, such as bribes, blackmail,
manipulation, threats, alcohol, and drugs (see Mezey and King,
1989). Further, she ignores the extent of physical strength in
that it differs amongst men and disregards that women or men may
become victims of rape by offenders of identical gender.
Moreover, her gender-specific approach overlooks that many male
rape victims are so fearful throughout the attack, which means
they are not able to fight back (Carpenter, 2009), so there are
dangers in generalising.

The Criminal Justice and Public Order Act (1994) helped to
expand the consequences for male rape offenders. At the same
time, though, reformers sought to challenge the legal definitions
of male rape. The Criminal Justice and Public Order Act (1994)
came with many inadequacies. For example, the 1994 Act is usually
seen as producing a criminal classification for 'male
rape', [7] though
this is deceptive, as it only incorporated penile-anal
intercourse as a form of rape. This deception being about 'male
rape' instead of anal rape is at least, in part, because of the
structure of reference wherein the reform in legislation
occurred, as the Act developed from worries over dissimilar
criminal sentencing for coercive buggery of a male and female
victim (Graham, 2006). Before this Act, the propensity to
perceive penile-anal intercourse of women and of men as
inherently dissimilar was reflected in the difference between the
criminal sentencing for the coercive buggery of a woman and of a
man (ibid.). The difference in criminal sentencing of coercive
buggery facilitated a movement to reform the legislation (hence,
the introduction of the 1994 Act), rooted in expanding criminal
sentencing for the crime of male rape (ibid.). Intrinsically, the
reform in legislation that made criminal sentencing for anal and
vaginal rape of females and non-consensual penile-anal
intercourse of men equal can be conceived of what Card (1981)
describes as a less complex procedure of contemporary legal
restructuring within criminal law, as classifications of
analogous violations were enmeshed collectively under the same
crime. However, the legal discourse on the reform in legislation
is dependent on ideas pertaining to discretely sexed bodies.

Prior to the Criminal Justice and Public Order Act (1994),
debates surrounding whether to include 'male rape' in the Act
caused great controversy, as there were arguments that supported
the inclusion of male rape, yet there were arguments against it,
which highlighted dissimilarity between sexed bodies instead of
similarity (Graham, 2006). The arguments against the
inclusion of male rape in the Act (i.e., to incorporate coercive
penile-anal intercourse as rape) implied that the female vagina
has 'special significance,' so violating it needs discrete
identification within a gender-specific crime of rape (Card,
1981). This view relies heavily on a firm division of male and
female bodies instead of including classifications of sexual
violence. Card (1981: 373) quotes:

The restriction of rape to vaginal intercourse with a woman
results in the oddity that a man who has non-consensual vaginal
intercourse is only guilty of indecent assault where the victim
was born a male but has undergone a sex-change operation …
[s]imilar problems might be encountered in the case of
hermaphroditic victims. Of course, such cases are unlikely to
arise, but if they did such a strange result would have been
resolved if there was simply one offence of penile penetration of
the vagina, anus or mouth of another person.

The arguments that supported the inclusion of male rape
perceived it as similar to vaginal rape, though the similarity
was perceived as to harm being caused instead of the nature of
the act itself; but arguing that the harm caused is similar is
not the same as arguing that the vagina, female anus, and male
anus are analogous (Graham, 2006). Graham goes on to say that, by
exclusively focusing on coercive penile-anal intercourse of men
instead of anal rape in general conveys a picture of discrete
gender difference, illustrating firm boundaries between female
and male bodies. Contradictorily, this indicates that the
discourse that enmeshed classifications of female and male
violation collectively under one umbrella, on the basis of
equality in sentencing, efficiently reconfirmed firm ideas of
gender difference between the violation of female and male bodies
(ibid.).

Moreover, the 1994 Act did not criminalise oral and object
penetration. This was problematic because research has found that
some male rape offenders commit both oral and object penetration
without the male rape victims' consent, and the victims saw these
as forms of rape (Abdullah-Khan, 2008). Feminists also saw the
Criminal Justice and Public Order Act (1994) problematic, as it
predominately concentrated on one specific sexual act: a man's
penis sexually penetrating a woman's vagina. This led feminists
to argue that this criminalisation mirrors a male heterosexual
obsession with one opening and one object. Feminists argue that
this type of conceptualisation (or definition) does not reflect
female rape victims' victimisation. This can also be said for
male rape victims' experiences, in that they do not just see
forced penile-anal intercourse as rape (Abdullah-Khan, 2008).
Additionally, Walklate (2004) comments that the Criminal Justice
and Public Order Act (1994) centers on the notion of consent (or
being irresponsible as to that consent), which situates the
responsibility of providing evidence on the alleged victim.

While it is 20 years since the Criminal Justice and Public
Order Act (1994) came into existence, Weiss (2010) argues that
the legal literature still assumes that rape is a gender-specific
crime. For instance, Temkin (1987) and the Sexual Offences
Amendment Act (1976) stipulate that rape is 'gender specific,'
that is, only a man can perpetrate rape, and only a woman can be
a victim of rape. Temkin (1987: 37) further adds that the
extension of the Criminal Justice and Public Order Act (1994) to
include male rape is counter-productive, as male victims at trial
will suffer the same poor treatment that females suffer, with
defence counsel implying that 'he consented at the time', 'he
asked for it', or 'led him on'. Lees (1997) challenges Temkin's
argument, arguing that all men have the potential to be raped,
not just women, and that the legal recognition of male rape will
encourage male victims to report rape. Thus, the emergence of the
Sexual Offences Act (2003) helps to strengthen the position of
male rape victims in court and to raise greater awareness of the
crime while highlighting its seriousness. The Act also helps to
eradicate the inadequacies that the Criminal Justice and Public
Order Act (1994) caused; this included criminalising
non-consensual oral penetration [8] while keeping non-consensual anus-penile
penetration a crime. Despite the improved legal changes in law,
rape is still assumed to be non-consensual vaginal-penile
penetration (Weiss, 2010).

Nevertheless, section 1 of the Sexual Offences Act (2003)
brings in the inception of oral penetration and introduces the
conceptions of recklessness and consent by re-expressing a
consideration of consent and of 'reasonable.' However, the term
'reasonable' is not clearly defined and leaves it open to
subjective interpretation as to what counts as 'reasonable.' The
Sexual Offences Act (2003: section 79) also incorporated
surgically reconstructed genitalia (e.g., gender-reassignment
surgery) to the current offence of rape. Moreover, women cannot
be convicted for rape, which is problematic because some research
has shown that male rape victims classify being forced to perform
oral and anal sex on women as rape (e.g., Weiss, 2010). Although
a few cases occur, the fact that some cases of women forcing men
to perform such acts are evidenced clearly warrant legal
protection for all male rape victims. Further research evidence
(e.g., Abdullah-Khan, 2008) shows that women do also force other
women to perform these sexual acts; for example, an 18-year-old
woman involved in the rape of a 37-year-old woman. In this case,
the female offender,

Struck her victim to the ground and held down her arms before
another gang member kicked the woman in the head … the
victim described how a girl, (believed to be the perpetrator
Claire Marsh) laughed throughout the ordeal and rallied the
rapists … with the cry 'go on, give her some' (case cited
in Abdullah-Khan, 2008: 31).

The prosecuting counsel advised the jury of the following:

Obviously being a female, she herself couldn't commit what is
defined as sexual intercourse in law, by herself penetrating the
victim. But, if she was party to a group attack and if she was
actively encouraging, ready to lend a hand, to join in, or she
was holding down when the event was taking place, she in law
would be guilty of rape, although female.

The female offender, who did not admit to the offence, was
sentenced to 7 years in a young offenders' institution.
Abdullah-Khan (2008) says that people who believe that women
cannot be offenders of rape would undoubtedly argue that gang
rape incorporates a certain psychology of manic group behavior
and, intrinsically, cannot be evidenced to advocate the
requirement for gender-neutrality in law pertaining to rape.
Whilst women offenders of rape seem to be uncommon, the fact that
some studies have documented their existence (e.g., Sarrel and
Masters, 1982; Johnson and Shrier, 1987; Anderson and
Struckman-Johnson, 1998; Fiebert and Tucci, 1998; Oliver, 2007;
Abdullah-Khan, 2008; Duncan, 2010; Weiss, 2010) shows that they
do occur.

Furthermore, the Sexual Offences Act (2003: section 2)
considers non-consensual penetration of the vagina or anus by a
part of the body (e.g., a finger) or anything else (e.g., a
bottle) that excludes the penis as assault by
penetration. [9]
However, the Criminal Law Revision Committee illustrates these as
being 'grave' and 'severely degrading experiences for the
victims, with the possibility of psychological damage enduring
long after the event' (CLRC, 1984: paragraph 4.5). Despite
highlighting these injuries, the Committee concludes that these
additional types of forced sexual acts are separate from rape,
even though documented research proves that male rape victims
themselves name such acts as rape (see, for example,
Abdullah-Khan, 2008). Legal acknowledgement of such forced sexual
acts will assist in tackling societal ideas of denial and help
female and male victims to seek legal redress and support, while
validating male rape victims' experiences of rape (Rumney, 2007).
If this notion of naming or labeling such forced sexual acts as
rape is ignored in law, it will exacerbate the institutional
neglect of male rape and the lack of societal recognition of this
social issue (ibid.). In addition, this lack of legal
acknowledgement would strengthen the idea that 'male rape is not
really a social problem', while causing isolation amongst male
rape victims (ibid.). Rumney and Taylor (1994) argue that such
issues of definition would have, in part, been tackled if the
proposed amendment (cl. 93) to the Criminal Justice and Public
Order Bill, defining sexual intercourse as 'vaginal or anal
penetration to any degree by any part of the assailant's body, or
any object, and shall include non-consensual oral intercourse,'
had been employed. This would also eradicate the gender issue in
rape within law. After all:

[Rape] is not a gender [specific] issue. Many victims are men
and boys. Indeed, one concern is that boys who were abused as
children find it particularly difficult to come forward and say
they have been abused, because there is still the stigma that
means they might be called gay (Hansard, House
of Lords, 8 July, 2010: column 590. Emphasis added).

There is an issue that arises from this passage: although this
recent Hansard debate regarding male rape highlights that rape is
not a gender-specific issue, it perpetuates the male rape myth
that 'male rape is solely a homosexual issue.' The debate
implicitly suggests that male rape does not affect heterosexual
men since it equates the phenomenon with the word 'gay'. However,
research evidence has shown that some male rape victims are
heterosexual or bisexual (Groth and Burgess, 1980; Mezey and
King, 1989; Stermac et al., 1996; Isley and
Gehrenbeck-Shim, 1997; Lees, 1997). Therefore, it could be argued
that the House of Lords is unaware of the growing amount of
research evidence that contradicts the male rape myth, in this
instance. The members of the House of Lords may have overlooked
disciplines such as criminology, sociology, or the social
sciences to better understand male rape and this particular male
rape myth. Consequently, it could be argued that the above
passage ignores the violence, suffering, and pain experienced by
heterosexual and bisexual male rape victims. The members' of the
House of Lords belief may influence the way state and voluntary
agencies enforce the law or subsequently deal with heterosexual
and bisexual male rape victims, in particular. It may also lead
to inappropriate policy decisions or provide scholars, societies,
and practitioners with a misleading impression of male rape.
Basing policy decisions on inaccurate information could pose a
risk since such information possibly will result in misguided or
unnecessary reforms to the criminal justice procedure.

This section of the paper critically examined the legal
definitions of male rape and outlined that contemporary
legislation within England and Wales is too restraining for male
rape victims. This can partly explain the under-reporting of male
rape. In law, male rape was not identified until the 1994 Act;
ergo, the state and voluntary agencies are inexperienced
in dealing with male rape victims' needs, which further restrains
reporting (Carpenter, 2009). The gender-specific Sexual Offences
Act (2003) may not only be deleterious to male rape victims, but
it also fails to protect women from being raped by other women.
It could be argued that this Act trivialises the issue of male
rape, while preventing men from coming forward and seeking the
support and help they need. Even so, the legislation pertaining
to male rape has improved, giving male rape victims a stronger
position in law and society than was the case previously
(Abdullah-Khan, 2008). It is important to examine how the
legislation has improved in practice, particularly in the courts
because it is here where male rape victims can get justice for
the rape that they suffered.

4. The Courts and Male Rape

Male rape victims' experiences of the court process can
provide them with the opportunity of reclaiming the power they
lost to the offenders, for example, by getting justice for what
has happened to them (Lees, 1997). In 2011, there were 1,058
offenders found guilty of rape of a female, and 95 offenders
found guilty of rape of a male (Ministry of Justice, 2013). This
shows that the conviction rate for female rape is higher than
male rape. However, the report does not offer any explanations
for this disparity in figures. The figures could largely be
overestimates depending on what the review is basing the figures
on. That said, the review goes on to mention that a very small
number of men go through the court system, and they state that
the statistics imply that getting a conviction in either a sexual
assault of a male case or a male rape case is very difficult.
With that said, it may be that the review is basing its inference
on a very small number of cases. This is also notable in Gregory
and Lees (1999), as they premise their conclusions from a small
number of male rape cases that reached the courts and argued that
the conviction rate for male rape is high. Gregory and Lees
examined sixty sexual assault and male rape incidents and
concluded that only eleven male rape cases got to the courts, but
there was a high conviction rate of 75%-100%, so they conclude
that the figures imply that juries may be more willing to convict
in male rape cases. Gregory and Lees (1999) study, however, prove
bias in their findings since the number of cases that they draw
conclusions from is very small.

After all, attrition and conviction rates in male rape cases
are determined from an intricate combination of the male rape
victim's decision to report to local authorities; the police able
to find suspects; the police deciding to investigate the male
rape case further; and the prosecution deciding to take the case
to the court system (Lees, 1997). In this study, Lees also
identifies how the jury is usually dubious of a scarcity of a
rape victim's physical resistance and injury during an episode of
rape, and the defence will frequently argue that such scarcity is
inconsistent with a claim of rape [10]. This stereotype, she argues, can
be even more influential in a male rape case rather than a female
rape case. As a result of this stereotype ingrained in the jury,
male rape victims may be reluctant to report their rape or are
more likely to drop out from their case (ibid.). It may also
influence societies', voluntary agencies', and state agencies'
responses to, and attitudes toward, male rape victims.

A further issue, which is prevalent in the courts, is the idea
that men who obtain an erection or ejaculate during their attack
somehow consented to the rape; and so the defence counsel may use
this against the victim in court to suggest that consent was
given, wrongly influencing the jurors (Rumney and Morgan-Taylor,
1998). It has been argued, however, that some male rape victims
will reluctantly respond with an erection or ejaculation during
their attack (Sarrel and Masters, 1982; McMullen, 1990). Getting
an erection and ejaculating are involuntary physiological
reactions to male rape (Groth and Burgess, 1980; Sarrel and
Masters, 1982). Still, this may be utilised within courts to
establish consent. Such a reaction may serve to impeach male rape
victims' credibility in trial testimony and discredit their
allegation of non-consent (Groth and Burgess, 1980). It is
possible that this reaction to rape can also be utilised to
establish a mitigating factor in sentencing within female rape
cases. For example, in the female rape case of Billam
(1986: 51) 8 Cr App R (S) 48, it was concluded by the court that
there ought to be some mitigation of sentence where "the victim
has behaved in a manner calculated to lead the defendant to
believe that she would consent to sexual intercourse". It could
be argued that it is unreasonable for a judge, who does not
consider the reality of rape, to use a rape victim's involuntary
physiological reaction to their rape as a ground for
mitigation.

It is also unreasonable for the courts to perpetuate the idea
that 'male rape is solely a homosexual issue' in that the courts
assume that all victims and offenders of male rape are homosexual
(Rumney and Morgan-Taylor, 1998). For instance, within certain
cases of buggery, the offender is assumed to be gay (ibid.). In
one male rape case, the heterosexuality of the offender was in
fact thought of as a mitigating factor in sentencing. This was
evidenced in the case of Harvey (1984: 186) 6 Cr App R
(S) 184, whereby Lawton LJ reduced a sentence to 30 months from
3.5 years on a man convicted of forced buggery of a boy who was
at the age of 12. Lawton LJ quotes:

[T]his was an isolated incident … in the experience of
this court those who commit this kind of offence usually have
fairly marked homosexual tendencies. There is nothing
about this case to indicate that this man has got those
tendencies (emphasis added).

From this, it appears that the courts maintain the male rape
myth that 'male rape is a homosexual issue', while equating
homosexuality with a tendency to perpetrate offences relating to
sexual violence. It ought to be reminded that many offenders and
victims of male sexual assault and male rape are not solely
homosexual (Groth and Burgess, 1980; Mezey and King, 1989). Of
course, these misconceptions in court may not only be pernicious
to the lives of male rape victims, but also may influence the way
state and voluntary agencies deal with male rape victims in
practice. This is evidenced in Abdullah-Khan (2008), Jamel
(2010), Sleath and Bull (2010), and Cohen (2014), where it was
found that many male rape victims report that the treatment they
get from the courts and state agencies is worse than the rape
itself. For instance, Rumney (2009) argues that male rape victims
who are believed to be homosexual or are actually homosexual may
experience homophobic attitudes by the courts and so will be
perceived as more to blame for, and less traumatised by, their
rape, than heterosexual male rape victims and female rape
victims. This was evident in the parliamentary process. During
the parliamentary debates over the legal recognition of male rape
in England and Wales, Lord Swinfen stated:

Non-consensual buggery for a homosexual man would be an
extremely traumatic experience. For a heterosexual man it would
be an even greater trauma. However, if it happens to a woman it
could be more distressing still because not only is she being
violated, but her total femininity is being destroyed at the same
time as she would not be used in a natural manner that one might
expect (Hansard, House of Lords, 20 June, 1994: column
66).

Another tactic used to diminish the male rape victims'
credibility can come in the form of implying that he was lying
about the rape, and so a 'false allegation' was made (Rumney,
2001). Defence counsel will frequently suggest a possible motive
for the alleged victim making a false allegation of rape during
cross-examination (ibid.). In the case of R. v. Richards
(1996) 2 Cr. App. R (S)16 7, for instance, it was argued that the
false allegation of attempted indecent assault and rape occurred
out of regret at having sex for money. In addition, the Director
of Public Prosecutions (2013) carried out a recent study on false
allegations in rape by examining 159 charging decisions [11] and found that false
allegations of rape are rife. The report also found that there
were a large number (5,651) of prosecutions for rape, but that
only a very small number (35) of individuals were prosecuted for
having made a false complaint. It also emphasises the intricate
issues that can arise in these serious cases, such as in one
female rape case, a suspect who had mental health issues made a
telephone call to the police and alleged that she had been raped
by an unnamed individual. Soon after the police arrived, she
admitted that the allegation was false and that she had made a
false report because she wanted food and shelter. Despite this,
female rape and male rape are difficult crimes to report in the
first place, so the number of false rape allegations is low or at
least no higher than the rate for other felonies (Lees,
1997).

5. Conclusion

This article has raised a number of issues surrounding male
rape in law and the courts. This paper has argued that the legal
definitions of male rape do not fully reflect male rape victims'
experiences. Consequently, the idea that 'male rape is not really
a social problem' is strengthened in law and the courts, while
causing isolation amongst male rape victims. The gender-specific
Sexual Offences Act (2003) is not gender-neutral in that women
cannot be convicted for male rape, which is problematic when this
paper has provided research evidence demonstrating that females
can and do rape males (e.g., Sarrel and Masters, 1982; Johnson
and Shrier, 1987; Anderson and Struckman-Johnson, 1998; Fiebert
and Tucci, 1998; Oliver, 2007; Abdullah-Khan, 2008; Duncan, 2010;
Weiss, 2010). It could be argued that, in court and the legal
literature, some of the attitudes around male rape may trivialise
this phenomenon, while possibly preventing men from coming
forward and seeking the support and help they need. This paper
has also evident that the defence counsels' expectations of how a
male rape victim is supposed to have suffered contradicts the
male rape literature. However, one must be cautious about making
inferences regarding the treatment of male rape victims in court
from a limited number of sources and cases. Still, this paper
highlights the urgency to educate the defence about the facts
surrounding male rape.

References

Abdullah-Khan, N. (2008) Male Rape: The Emergence of a
Social and Legal Issue. Hampshire: Palgrave Macmillan.

Saunders, C. (2006, March) 'Revisiting Rape: A
Gender-Comparative Exploration of the Investigation and
Prosecution of Rape Complaints.' Paper presented at the Socio
Legal Studies Association Annual Conference, hosted by the
University of Stirling.

[6] This
point was also well-established in the case of
Stanford (1990) Crim LR 526.

[7] For
instance, Lord Ponsonby of Shulbrede refers to his revision
in legislation, which the House of Lords brought in, as
associated to male rape ( Hansard, House of Lords,
1994. 20 June).

[8] Sexual
Offences Act (2003), s. 1. For the first time, this
legislation incorporated penile penetration of the mouth in
the actus reus of rape. Before this, such sexual
assaults were conceptualised as indecent assault, which
carried a lesser punishment for offenders.

[9] No other
object or appendage meets the requirements to be eligible as
'rape' because these simply become assault by penetration;
however, many male rape victims may see these as forms of
rape. By demeaning these acts in law, could provide a
disservice to all rape victims-perhaps this is more to do
with refusing to acknowledge women as rapists.

[10] Many
male rape victims are so fearful during the rape that they
are incapable of resisting, so they just freeze (Walker
et al., 2005).

[11] The
expression 'decision' correlates with the number of suspects,
not the number of cases, because in a small number of cases
there was more than one suspect, in relation to each of whom
an individual decision was made.